Opinion
No. C 99 4834-SI
March 22, 2004
Paul J. Hall, Eric K. Larson, Beth L. Mitchell, NIXON PEABODY LLP, San Francisco, CA, for Defendants GROUP VOYAGERS, INC., GROUP VOYAGERS, INC. EMPLOYEES' PENSION PLAN and GROUP VOYAGERS, INC. 401(K) PLAN
James W. Rayhill, CARTER LED YARD MILBURN LLP, New York, NY, for Defendants GROUP VOYAGERS, INC., GROUP VOYAGERS, INC. EMPLOYEES' PENSION PLAN and GROUP VOYAGERS, INC. 401(K) PLAN
John J. Dacey, Esq., James M. Sitkin, Dacey Sitkin, San Francisco, CA, for Plaintiffs LYNDA A. SCHERRER, DAVID M. FEINSTEIN
Stephen Thomas Davenport, Jr., Esq., Davenport Gerstner, Walnut Creek, CA, for Plaintiffs LYNDA A. SCHERRER, DAVID M. FEINSTEIN
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
This matter came on for hearing on March 22, 2004, upon the application of Lynda Scherrer and David Feinstein and the classes they represent (hereinafter collectively "Plaintiffs") and Group Voyagers, Inc, Group Voyagers, Inc., Employees' Pension Plan and Group Voyagers, Inc. 401(k) Plain (collectively, "the Defendants") for final approval of the Stipulation Re Settlement Agreement and Release ("the Stipulation") entered into on January 9, 2004, of which the Court issued an Order granting preliminary approval on January 13, 2004 following a hearing. In that Order, after determining that the proposed Notice of Class Action met all constitutional and statutory requirements, including due process, the Court ordered that said Notice be mailed to all class members. Due and adequate notice having been given to the members of the settlement Classes, and the Court having considered the Stipulation, all papers and proceedings held herein, and all oral and written comments received regarding the proposed Settlement (no written objections were submitted as allowed for in the class notice of the settlement and none were received by counsel), and having reviewed the entire record in the Action, and good cause appearing therefor;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. This Order incorporates by reference the definitions in the Stipulation, and all capitalized terms used herein shall have the same meanings as set forth in the Stipulation.
2. This Court has jurisdiction over the subject matter of this action and over all parties to the action, including all members of the Classes.
3. The proposed Settlement of this action on the terms and conditions set forth in the Stipulation is in all respects fair, reasonable and adequate as to the Classes, and is in the best interests of the Classes and should be finally approved, especially in light of the benefits to the Classes and the future difficulty, expense and probable duration of further litigation against Defendants, the risk of establishing alleged liability against Defendants, and the risks attendant to collecting any judgment that might be obtained against Defendants on behalf of the Classes.
4. The Court finds that the distribution of the Notice To Class Members of Pendency of Settlement Of Class Action And Approval/Objection Process as provided for in the Stipulation constituted the best notice practicable under the circumstances to all members within the definitions of the Classes, and fully met the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Fair Labor Standards Act, due process of law, the United States Constitution, the California Constitution, and any other applicable law.
5. The Stipulation and the proposed Settlement are hereby finally approved and shall be consummated in accordance with the terms and provisions of the Stipulation.
6. The plan of allocation of the overtime compensation claims for members of the FLSA and California Classes as set forth in the Stipulation is in all respects fair, reasonable and adequate, and is hereby approved.
7. The plan of allocation of the ERISA Class members' claims as set forth in the Stipulation is in all respects fair, reasonable and adequate, and is hereby approved.
8. This action is hereby dismissed in its entirety as to all Defendants, with prejudice, with all parties to bear their own costs, except as otherwise provided in the Stipulation.
9. In addition, the lawsuit entitled Scherrer v. Cosmos Guide Holding, B. K, et al, U.S.D.C., Northern District of California Case No. C01-1551-SI is hereby dismissed with prejudice.
10. Upon entry of this Order and Final Judgment, and by operation of this Order and Final Judgment, the claims of each Class member against any of Defendants, and against any and all of the released parties as defined in the Stipulation, are fully, finally, and forever released, relinquished and discharged pursuant to the terms of the Stipulation.
11. By operation of this Order and Final Judgment, all members of the Classes are hereby forever barred and enjoined from prosecuting the released claims against any of the released parties as defined in the Stipulation, including, but not limited to, the claims set forth in this action and in the case of Scherrer v. Cosmos Guide Holding, B. V., et al, U.S.D.C., Northern District of California Case No. C01-1551-SI.
12. Each member of the Classes is bound by this judgment, including, without limitation, the release of claims as set forth in the Stipulation.
13. This Order and Final Judgment and the Stipulation, and all papers related thereto, are not, and shall not be construed to be, an admission by any of the Defendants of any liability, claim or wrongdoing whatsoever, and shall not be offered as evidence of any such liability, claim or wrongdoing in this or any other proceeding.
14. The administration of the Settlement, and the decision of all disputed questions of law and fact with respect to the validity of any claim or right of any person to participate in the distribution of the overtime compensation claims or the ERISA claims, shall be determined according to the dispute resolution procedures set forth in the Stipulation, all subject to the continuing authority of this Court.
15. In the event that the Settlement does not become effective in accordance with the terms of the Stipulation, then this Final Judgment and Order shall be rendered null and void to the extent provided by and in accordance with the Stipulation and shall be vacated, and in such event, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Stipulation.
16. The Court hereby finds that, pursuant to Fed.R.Civ.P. 54(b), there is no just reason for delay of entry of this final judgment and hereby directs its entry.
17. Without affecting the finality of this judgment in any way, this Court hereby retains continuing jurisdiction over (a) implementation of this Settlement, (b) disposition of the settlement funds, (c) hearing and determining applications for attorneys' fees and costs in the Action, (d) hearing and determination of any application for compensation by the named plaintiff Class Representatives in the Action, and (e) all parties hereto for the purpose of construing, enforcing and administering the Stipulation.
IT IS SO ORDERED.